Adams v. Lankford, 85-8267

• Decision Date: 09 May 1986
• Docket Number: No. 85-8267,85-8267
• Citation: 788 F.2d 1493
• Parties: Kenneth H. ADAMS, Walter L. Evans, William V. Evans, R.K. Sellers, Petitioners-Appellants, v. Richard B. LANKFORD, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1493

788 F.2d 1493

Kenneth H. ADAMS, Walter L. Evans, William V. Evans, R.K Sellers, Petitioners-Appellants, v. Richard B. LANKFORD, Respondent-Appellee.

No. 85-8267.

United States Court of Appeals Eleventh Circuit.

May 9, 1986.

Herbert Shafer, Atlanta, Ga., David H. Remes, Covington & Burling, Washington, D.C., for petitioners-appellants.

H. Allen Moye, Atlanta, Ga., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before JOHNSON and ANDERSON, Circuit Judges, and DYER, Senior Circuit Judge.

ANDERSON, Circuit Judge:

Appellants Adams, Walter Evans, William Evans, and Sellers were indicted and convicted under the Georgia RICO statute based on offenses of commercial gambling. Prior to trial, they filed motions to suppress tape recordings of conversations taken from various telephone wiretaps. Appellants argued that the Fulton County District Attorney and a Fulton County Superior Court judge had no authority, under either Georgia law or Title III of the Omnibus Crime Control and Safe Streets Act, 18 On direct appeal of their convictions, appellants again argued that the applications by the Fulton County District Attorney and the authorization of wiretaps by a Fulton County Superior Court judge violated Georgia law and Title III. In Evans v. Georgia, 252 Ga. 312, 314 S.E.2d 421, 425 (1984), the Georgia Supreme Court recognized that for evidence obtained through state-authorized wiretaps to be admissible, it must have been obtained in compliance with both state and federal law. Appellants argued there, as they continue to do so before this court, that their case turned on the court's interpretation of 18 U.S.C. Sec. 2518(3). That section provides that upon a proper party's application for a wiretap order, a judge may enter an order "authorizing or approving interception of wire or oral communications within the territorial jurisdiction of the court in which the judge is sitting" if certain conditions not relevant to this case obtain. Under appellants' theory, their communications were "intercepted" at their telephones. They argued, therefore, that because some of these telephones were located outside Fulton County, the interception occurred outside "the territorial jurisdiction" of the Fulton County Superior Court judge that issued the wiretap orders. The Georgia Supreme Court rejected this contention, noting that Title III defines the term "intercept" as " 'the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device.' " Evans, 314 S.E.2d at 425 (quoting 18 U.S.C.A. Sec. 2510(4)). The court reasoned that Sec. 2518(3) had not been violated because appellants' conversations were "aurally acquired" (heard) at the police listening post which was located within the Atlanta Judicial District. Evans, 314 S.E.2d at 425-26.

U.S.C. Secs. 2516(2), 2518(3), to authorize wiretaps on telephones outside Fulton County. Following an evidentiary hearing, the trial court denied the motion to suppress.

Appellants filed federal habeas petitions pursuant to 28 U.S.C. Sec. 2254, asserting violations of the federal statute, i.e., Title III. Appellee (hereafter referred to as "Georgia" or "the State") filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6), arguing that the Georgia Supreme Court's interpretation of Title III was correct, and, in any event, the merits need not be reached because the alleged Title III violation was not cognizable on habeas review. The district court reached the merits, interpreted Title III in the same manner as had the Georgia Supreme Court, and granted the state's 12(b)(6) motion.

Appellants now appeal the district court decision claiming (1) that the alleged Title III violation is cognizable on habeas review; (2) that the district court erred in its interpretation of Title III, i.e., that there is a violation of the statute when a Fulton County Superior Court judge issues a wiretap order for a phone outside Fulton County upon application by the Fulton County District Attorney; and (3) that the district court improperly converted Georgia's 12(b)(6) motion into a motion for summary judgment and decided the merits of appellants' claims without providing appellants with sufficient notice or opportunity to prepare an argument on the merits. Because we find that the alleged violations of Title III do not implicate the core concerns of the federal wiretap statute, we hold that these claims are not cognizable on habeas review. Consequently, in affirming the judgment of the district court, we find it unnecessary to reach appellants' second and third claims on appeal.

FACTS

The facts pertinent to our discussion of this appeal are as follows. The evidence at trial showed that appellants participated in a lottery ring operating in the metropolitan Atlanta area which involved gambling on the volume of stocks and bonds traded on the New York Stock Exchange. Evidence against appellants was obtained pursuant to 12 wiretap orders issued by a Fulton County Superior Court judge upon application by the Fulton County District Attorney. In all, 41 telephones were tapped, 23 of which were located outside Fulton County Appellants contend that the evidence obtained through wiretaps on phones outside Fulton County was obtained in violation of 18 U.S.C. Secs. 2516(2) and 2518(3). They claim that this evidence obtained in violation of the statute must be excluded pursuant to 18 U.S.C. Sec. 2515. ² The issue we decide today is whether the Title III violations appellants allege are of sufficient magnitude to be cognizable on habeas corpus review. We conclude that they are not.

                (i.e., outside the Atlanta Judicial Circuit). 1   Georgia law divides the state into 45 judicial circuits.  The Atlanta Judicial Circuit, within which 12 Fulton County Superior Court judges preside, is coextensive with Fulton County.  See O.C.G.A. Sec. 15-6-1(3) (1985)
                

DISCUSSION

A. Legal Background

We note at the outset that appellants' Title III claims are not barred from consideration on habeas corpus review by the rule of Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). In Llamas-Almaguer v. Wainwright, 666 F.2d 191, 193-94 (5th Cir.1982) (Unit B), ³ the former Fifth Circuit held that the limitations of Stone v. Powell are inapplicable where violations of Title III's exclusionary rule, 18 U.S.C. Sec. 2515, are alleged. We turn then to the general principles governing whether violations of federal statutes are cognizable on federal habeas corpus review.

In Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), the Supreme Court was presented with the question of whether a federal prisoner's collateral attack pursuant to 28 U.S.C. Sec. 2255 ⁴ could be predicated on a violation of Fed.R.Crim.P. 32(a), which gives the defendant the right to make a statement on his own behalf before he is sentenced. The Court rejected the claim, stating:

The failure of a trial court to ask a defendant represented by an attorney whether he has anything to say before sentence is imposed is not of itself an error of the character or magnitude cognizable under a writ of habeas corpus. It is an error which is neither jurisdictional Id. at 428, 82 S.Ct. at 471 (quoting Bowen v. Johnston, 306 U.S. 19, 27, 59 S.Ct. 442, 446, 83 L.Ed. 455 (1939)).

nor constitutional. It is not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure. It does not present "exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent."

In United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979), the Supreme Court held that a guilty plea is not subject to collateral attack when all that can be shown is a formal violation of Fed.R.Crim.P. 11. Applying the Hill standard, the Timmreck Court stated that the trial judge's acceptance of the defendant's guilty plea without informing the defendant of the mandatory special parole term required by the applicable statute was a "formal" or "technical" violation of Rule 11. 441 U.S. at 783-84, 99 S.Ct. at 2087. As such, the defendant's claim failed to meet the Hill test and was not cognizable on habeas review. ⁵

The Supreme Court has not yet applied its habeas cognizability analysis in a Title III context. Moreover, our research has located only one case in which this circuit has considered whether an alleged violation of Title III is cognizable on habeas review. In Llamas-Almaguer v. Wainwright, 666 F.2d 191 (5th Cir.1982) (Unit B), the defendant alleged a violation of 18 U.S.C. Sec. 2518(1)(c). That section requires all applications for wiretap orders to include "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." In finding that this alleged violation of Title III was not cognizable on habeas review, the court stated that the application prerequisite was violated "if at all, not by complete omission or by flagrant disregard, but by a marginal inadequacy." Llamas-Almaguer, 666 F.2d at 194. ⁶

Thus, our inquiry in this case focuses on whether the asserted Title III violations are merely formal or technical errors, or whether the alleged violations implicate the core concerns of Title III. See United States v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979); Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 2305, 41 L.Ed.2d 109 (1974); Llamas-Almaguer v. Wainwright, 666 F.2d 191, 194 (5th Cir.1982) (Unit B); Keel v. United States, 585 F.2d 110, 113-14 (5th Cir.1978) (en banc).

B. The Instant Case

For the purposes of our analysis, we can assume the existence of the Title III violation appellants allege. In order to determine...